Who can you call, who can your robot call?

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Thank you to the MAR Legal Team for their great summary of the changing telephone consumer laws going into effect 1/27/25. For sure, you can learn more about these changes at the Berkshire Technology CE program by Sandy Carroll on January 29th.  REALTORs who use telemarketing calls and texts to promote their services to consumers may want to register for the webinar hosted by NAR’s Legal and Advocacy Teams featuring best practices to comply.  Here is the summary:
The Telephone Consumer Protection Act (TCPA) is a federal law that requires prior express consent be obtained prior to using an automated telephone dialing system (ATDS) to make telemarketing calls or texts. Failure to obtain such consent can lead to legal liability, costly litigation, and exorbitant penalties.
Last year, the FCC issued several new TCPA rules and guidance, including that:
  1. The Do-Not-Call Registry restrictions clearly apply to text messages as well as phone calls;
  2. The seller of a product or service must obtain consent directly from the consumer, known as one-to-one consent, before using an ATDS or sending artificial voice messages; and
  3. Artificial voice messages include messages developed using generative AI.
The One-to-One Consent Rule, effective on January 27, 2025, requires that each caller and texter soliciting consumers’ business must obtain a consumer’s prior express written consent prior to making robocalls or texts. The individualized consent must be in response to a clear and conspicuous disclosure that the consumer will receive robocalls or robotexts and the content of those contacts must be logically and topically related to the website where the consumer gave consent.
What does this mean for real estate professionals?
Real estate professionals can make marketing calls and texts without prior consent so long as they are not using a random or sequential number generator (ATDS) or prerecordings and artificial messages and are otherwise adhering to the Do-Not-Call registry restrictions.[1]
In anticipation of the One-to-One Consent Rule’s effective date, brokerages and agents should continue to incorporate best practices to reduce the risk of liability while still being able to successfully leverage these communications as a part of business strategy.
  1. Obtain prior express written consent directly from consumers you intend to call or text for marketing purposes and maintain an updated list of those who provided consent and those who opted-out.
  2. Adopt a TCPA/Do-Not-Call Registry policy and routinely train agents and staff on the policy.
  3. Be sure to routinely check names and numbers against the Do-Not-Call Registry before calling or texting, even when using a third-party platform or ATDS.
  4. Review the terms of service with any vendors you use to obtain phone numbers or automate calls and texts and ask that the vendor warrant its compliance with the TCPA and indemnify you from TCPA and Do-Not-Call Registry liability.
  5. Review the return on investment before incorporating ATDSs and artificial voice messages into your marketing practices to be sure the benefit outweighs any risk of TCPA liability.
Most real estate professionals are making their own contacts using carefully curated lists in their telemarketing, however, if your business uses ATDS or prerecorded or artificial messages take special care to follow the TCPA consent requirements.
For more information, NAR has provided the following resources:
See also, The Consumer Guide from the FCC: https://docs.fcc.gov/public/attachments/DOC-408396A1.pdf
Stay tuned for additional information from NAR on the TCPA and FCC regulations. MAR will continue to update this blog as more resources become available.
[1] In 2021, the U.S. Supreme Court issued the Facebook v. Duguid decision which held that the TCPA and its prior consent requirements only apply to automated telephone dialing systems (ATDS) with the capacity to store or dial numbers using a random or sequential number generator.